49-406. Permit to engage in surface mining; compliance with federal act required; annual statement of coal mined; application for permit, contents; notice of application for permit, publication; map a - Kansas Statutes

49-406

Chapter 49.--MINES AND MINING Article 4.--MINED-LAND CONSERVATION AND RECLAMATION

      49-406.   Permit to engage in surface mining; compliance with federalact required; annual statement of coal mined; application for permit,contents; notice of application for permit, publication; map and plan toaccompany application; disapproval of application, when; fees; performancebonds; cash deposits, securities, mortgages on real estate; liabilityinsurance; renewal ofpermits; application filed for public inspection, information required tobe furnished.(a) No operator shall engage in surface mining unless such operatorpossesses a valid permit issued by the secretary designating the area ofland affected by the operation. The permit shall authorize the operatorto engage in surface mining upon the area of land described in suchpermit and shall be valid for a period not to exceed five years fromthe date of its issuance unless sooner revoked or suspended as hereinprovided. All surface mining conducted under such permit shall complywith the requirements of the surface mining control and reclamation actof 1977 (public law 95-87) and the regulations issued thereunder. Itshall be the duty of each producer holding a permit within the state ofKansas to file an annual statement setting forth the full amount of coalmined or taken from each source or deposit and to identify the specificsource or deposit from which taken. Such statement shall be filed withthe secretary upon forms provided by thedepartment not later than30 days after the end of each calendar year. All operators shall apply fornew permits within two months following approval of the statereclamation program by the secretary of the interior, pursuant to thefinal program provisions of the national surface mining control andreclamation act of 1977 (public law 95-87), who expect to operate a mineor mines after the expiration of eight months following suchapproval of this act.

      (b)   The application for the permit shall include: (1) Five copies ofa United States geological survey topographic map on which the operatorhas indicated the location of the area of land affected, the coursewhich would be taken by drainage from the area of land affected to thenearest stream or streams to which such drainage would normally flow,the name of the applicant and the date.

      (2)   The owner or owners of the surface of the area of land to beaffected by the permit and the owner or owners of all surface areawithin 500 feet of any part of the affected area.

      (3)   All persons with any interest in the coal to be mined.

      (4)   The source of the applicant's legal right to mine the coal orother minerals affected by the permit.

      (5)   The permanent and temporary post-office address of theapplicant.

      (6)   Whether the applicant or any person, firm, partnership orcorporation associated with the applicant holds or has held any otherpermits under this act; and, if so, an identification of such permits.

      (7)   The written consent of the applicant and such other persons, ifany, necessary to grant such access to the secretary and the secretary'sdesignee to the area of land affected underapplication from the date of application until the expiration of anypermit granted under such application and thereafter for such time as isnecessary to assure compliance with all provisions of this act or anyrule or regulation promulgated hereunder.

      (8)   A determination of probable hydrologic consequences of themining and reclamation operations, both on and off the mine site, withrespect to the hydrologic regime, quantity and quality of water insurface and groundwater systems including the dissolved and suspendedsolids under seasonal flow conditions and the collection of sufficientdata for the mine site and surrounding areas so that an assessment canbe made by the department of the probable cumulative impacts of allanticipated mining in the area upon the hydrology of the area, andparticularly upon water availability. This determination shall not berequired until hydrologic information on the general area prior tomining is made available from appropriate governmental agencies, but apermit shall not be approved until such information is available and isincorporated into the application. If the secretary finds that the probabletotal annual production at all locations of any operator will not exceed100,000 tons, the determination of probablehydrologic consequences, and any statement required by the secretary concerningresults of test borings or coresamplings, shall, uponwritten operator request, be performed by a qualified public or privatelaboratory designated by the secretary, atdepartmental expense.

      (9)   Such other information as may be required by the secretary in orderto qualify to administer the regulatory programs adopted by the UnitedStates department of the interior, office of surface mining reclamationand enforcement, pursuant to the national surface mining control andreclamation act of 1977 (public law 95-87) and federal rules andregulations adopted pursuant thereto.

      (c)   At the time of submission of the application for a permit, oramendment to a permit, the operator shall submit to thesecretary proof ofpublication which shall contain such data and be in such form as the secretaryshall require by regulations consistent with the national surfacemining control and reclamation act of 1977 (public law 95-87), whichnotice shall be published at least once a week for four consecutiveweeks. The secretary, in accordance with regulations consistent with suchnational act, shall notify appropriate public agencies of the operator'sintention to mine, and shall receive and make available for publicinspection the written comments or objections of such agencies and anyperson having an interest possibly affected adversely by proposedoperations. The secretary also shall prescribe byregulations consistentwith such national act, a system for holding informal conferences in thearea of proposed operations with public notice thereof.

      (d)   The application for a permit shall be accompanied by an enlargedUnited States geological survey topographic map prepared and certifiedby a professional engineer or geologist containing the following: (1) Anidentification of the area to correspond with the application.

      (2)   The boundaries of surface properties and names of owners on thearea of land affected, adjacent deep mines, and the name of the owner orowners of the surface area within 1,000 feet of any partof the area of land affected, and, if known to the operator, theexistence of adjacent deep mines.

      (3)   Be of a scale of not less than 400 feet to theinch and not to exceed 660 feet to the inch.

      (4)   Show the names and locations of all streams, creeks or otherbodies of public water, roads, buildings, cemeteries, oil and gas wellsand utility lines on the area to be mined and within1,000 feet of such area.

      (5)   Show by appropriate markings the boundaries of the area of landaffected, the cropline of the seam or deposit to be mined, and the totalnumber of acres involved in the area of land affected.

      (6)   Show the date on which the map was prepared, the north point andthe quadrangle name.

      (7)   Show the drainage plan on and away from the area of landaffected. Such plan shall indicate the directional flow of water,constructed drainways, natural waterways used for drainage, and thenearest streams or tributaries receiving the discharge.

      (8)   A verified statement by the operator containing the proposedmethod of operation, grading, reclamation and conservation plan for theaffected area including dates and approximate time of completion, andthat the operation will meet the requirements of this act, or any ruleor regulation promulgated hereunder.

      (9)   The certification of the maps by the professional engineer or geologist shallread as follows: "I, the undersigned, hereby certify that this map iscorrect and shows to the best of my knowledge and belief all theinformation required by the surface mining laws of this state." Thecertification shall be signed and, in the case of an engineer, the engineer'sseal affixed.

      (10)   Such other information as may be required by the secretary in orderto qualify to administer the regulatory programs adopted by the UnitedStates department of the interior, office of surface mining reclamationand enforcement, pursuant to the national surface mining control andreclamation act of 1977 (public law 95-87) and federal rules andregulations adopted pursuant thereto.

      Nothing in this subsection shall be construed to permit the practice ofengineering, as defined by K.S.A. 74-7001, and amendments thereto, by a geologist.

      (e)   The application for a permit shall be accompanied by a plan ofreclamation that meets the requirements of this act, and the rules andregulations promulgated hereunder and the requirements necessary for thesecretary to qualify to administer the regulatory programs adopted by theUnited States department of the interior, office of surface miningreclamation and enforcement, pursuant to the national surface miningcontrol and reclamation act of 1977 (public law 95-87) and federal rulesand regulations adopted pursuant thereto.

      (f)   The secretary shall not approve the application for a permit to minewhere such mining would constitute a hazard to a residence, publicbuilding, school, church, cemetery, commercial or residential building,public road, stream, lake or other property. No surface coal miningoperations shall be permitted within 100 feet of theoutside right-of-way line of any public road, except where mine accessroads or haulage roads join such right-of-way line and except that the secretarymay permit such roads to be relocated or the area affected to liewithin 100 feet of such road, if after public notice andopportunity for public hearing in the locality, a written finding ismade that the interests of the public and the landowners affectedthereby will be protected; or within 300 feet from anyoccupied dwelling, unless waived by the owner thereof, nor within 300feet of any public building, school, church, community, orinstitutional building, public park, or within 100 feet ofa cemetery.

      (g) (1)   A basic fee of $50 plus a fee in an amount to befixed by the secretary for everyacre and fraction of an acre of land to be affected shall be paid at thetime of application.

      (2)   Each permittee shall be assessed a per ton fee on every ton of coalextracted.

      (3)   Pursuant to paragraph (2) of this subsection (g), the per ton feeshall be an amount not less than $.03 and not more than $.10 per ton ofcoal extracted each calendar year. This per ton fee shall be paid to thedepartment on a quarterly basis and it shall be due within 30 calendar daysafter the beginning of each calendar quarter.

      (4)   Fees established under this subsection shall be fixed by the secretary,subject to restrictions and limitations imposed bythis subsection, in amounts deemed necessary to administer and enforce the provisionsof the mined-land conservation and reclamation act.

      (h) (1)   After a surface coal mining and reclamation permitapplication has been approved but before such a permit is issued, theapplicant shall file with the secretary, on a form prescribed and furnishedby the department, a bond for performance payable to thestate treasurer, andconditional upon faithful performance of all the requirements of thisact and the permit. The bond shall cover that area of land within thepermit area upon which the operator will initiate and conduct surfacecoal mining and reclamation operations within the initial term of thepermit. As succeeding increments of surface coal mining and reclamationoperations are to be initiated and conducted within the permit area, theoperator shall file with the department an additional bond or bonds to coversuch increments as required by the secretary. The amount of the bondrequired for each bonded area shall depend upon the reclamationrequirements of the approved permit; shall reflect the probabledifficulty of reclamation giving consideration to such factors astopography, geology of the site, hydrology, and revegetation potential;and shall be determined by the secretary. The amount of the bond shall besufficient to assure the completion of the reclamation plan if the workhad to be performed by the department in the event of forfeiture and in nocase shall the bond for the entire area under one permit be less than $10,000.

      (2)   Liability under the bond shall be for the duration of thesurface coal mining and reclamation operation and for a periodcoincident with operator's responsibility for revegetation requirements.Surety bonds shall be executed by the operator and a corporate suretylicensed to do business in Kansas.

      (3)   The amount of the bond required and the terms of each acceptanceof the applicant's bond shall be adjusted by the secretary from time to timeas affected land acreages are increased or decreased or where the costof future reclamation changes.

      (4)   Subject to provision (5), an applicant may elect to satisfy thebonding requirements of thissubsection by depositing with the state treasurer cash, negotiable bondsof the United States or of the state of Kansas, negotiable certificatesof deposit of any bank organized under the laws of the United States orof the state of Kansas or irrevocable letters of credit of any such bank.The cash deposit or market value of any such securities shall be equal toor greater than the amount of the bond required for the bonded area.

      (5)   An applicant may elect to satisfy the bonding requirements of thissubsection by depositing with the state treasurer cash or any of thesecurities specified in provision (4) or any combination thereof and afirst mortgage on real estate which in the aggregate shall be equal to orgreater than the amount of the bond required for the bonded area. Themortgage shall be equal in value to not more than 50% of the amount of thebond and shall be secured by real estate which has an appraised value equalto or greater than twice the amount of the mortgage.

      (i)   Each permit applicant shall submit to the department as part of theapplication, a certificate issued by an insurance company licensed to dobusiness in Kansas, certifying that the applicant has a public liabilitypolicy in force for all operations under the permit applied for,providing personal injury and property damage insurance in an amountadequate to compensate persons damaged as a result of mining andreclamation operations, including use of explosives, and entitled tocompensation under the laws of Kansas. The secretary may establish, byregulations, the amount of such insurance to be carried. Such policyshall be maintained during the term of the permit and any renewal, andbe continued until completion of all operations.

      (j)   Where one operator succeeds another at any uncompletedoperation, either by sale, assignment, lease or otherwise, the secretary mayrelease the first operator from all liability under this act as to thatparticular operation. If two or more operators have been issued a permitfor the same operation and have otherwise complied with the requirementsof the act and regulations promulgated pursuant thereto, the successoroperator shall assume as part of such operator's obligationunder the act, all liability for the reclamation of the area of landaffected by the former operator.

      (k)   A valid permit issued by the secretary may be renewed with respectto areas within boundaries of the existing permit, upon application bythe permit holder. The burden shall be upon the applicant, subsequentto fulfillment of public notice requirements of the national surfacemining control and reclamation act of 1977 (public law 95-87), toestablish, subject to confirmation by written findings of the secretary,that:

      (1)   Terms and conditions of the existing permit are satisfactorilymet; and

      (2)   present mining and reclamation operations are in compliance withenvironmental protection standards imposed by this act and the nationalsurface mining control and reclamation act of 1977 (public law 95-87);and

      (3)   renewal will not substantially jeopardize the operator'scontinuing responsibility on existing permit areas; and

      (4)   the operator has provided evidence that the performance bond ineffect for the operation together with any additional bond required bythe secretary, will continue in full force and effect for any renewalrequested; and

      (5)   any additional revised or updated information required by the secretaryhas been provided.

      Prior to approval of any permit renewal, the secretary shall providenotice to any appropriate public authorities.

      (l)   If a renewal application includes a proposal to extendoperations beyond existing permit boundaries, that portion of theapplication applicable to areas beyond existing permit boundaries shallbe subject to all standards applicable to new permits. Permit renewalsshall not be issued for terms greater than provided for originalpermits, and applications for renewal permits shall be made at least 120days prior to expiration of the existing permit.

      (m)   Each permit applicant shall file a copy of the application forpublic inspection at the field office of the department, which copy need notcontain information relating to the coal seam itself. Any person with aninterest which may be adversely affected shall be furnished withinformation pertaining to coal seams, test borings, core samplings, orsoil samples, if such information is required by the secretary, togetherwith data respecting location of subsurface water and analysis ofchemical properties including acid forming properties of the mineral andoverburden. Information pertaining only to the analysis of the chemicaland physical properties of the coal, excepting information regardingsuch mineral or elemental content which is potentially toxic in theenvironment, shall be kept confidential and not made a matter of publicrecord.

      History:   L. 1968, ch. 395, § 6; L. 1974, ch. 229, § 2; L.1978, ch. 208, § 5; L. 1979, ch. 169, § 4; L. 1981, ch. 213, §3; L. 1984, ch. 200, § 1;L. 1988, ch. 192, § 14;L. 1990, ch. 194, § 1; July 1.